CASINO SERVICES AGREEMENT
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THIS CASINO SERVICES AGREEMENT (the "Agreement"), is made and entered into
as of the 12th day of October 2004, by and between CC Tollgate LLC, a Delaware
limited liability company ("Owner") and Century Resorts International Limited, a
Mauritian corporation ("Manager").
WITNESSETH
WHEREAS, Owner shall use its best efforts to obtain all necessary approvals
from the relevant authorities in Colorado to develop and operate a
gaming/hotel/entertainment facility to be situated in Central City, Colorado,
USA (the "Casino"); and
WHEREAS, this Agreement shall become effective once Owner has successfully
secured the license necessary to develop and operate the Casino as outlined in
the above Whereas paragraph; and
WHEREAS, Owner desires to engage Manager to provide the expertise necessary
to manage the Casino and Manager is willing to provide such services on behalf
of and for the account of Owner on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
I. APPOINTMENT OF MANAGER
1.1 Owner hereby appoints, hires and employs Manager, as Owner's exclusive
agent, to provide expertise for the management of the Casino on behalf of and
for the account of Owner during the term of this Agreement. Manager hereby
accepts such appointment upon and subject to the terms, conditions, covenants
and provisions set forth herein. Manager agrees to act in compliance with this
Agreement and in broad conformity with the applicable Annual Operating Plan.
1.2 Owner hereby agrees that, subject to the limitations described herein,
Manager shall have uninterrupted control in providing its services for the
management of the Casino during the term of this Agreement, free of molestation,
eviction or disturbance by Owner or any third party through or under Owner.
II. TERM OF AGREEMENT
2.1 Unless sooner terminated pursuant to the provisions of this Agreement,
the initial term of this Agreement shall be deemed to have commenced as of the
Effective Date and shall expire on the twentieth (20th) anniversary of the
opening date of the Casino. Manager shall have the right, in its sole
discretion, to extend the term of this Agreement for additional twenty (20) year
terms on the same terms and conditions.
2.2 This Agreement shall terminate upon the occurrence of any of the
following events: (i) the expiration of the term of Agreement; (ii) the
agreement by both parties in writing to terminate this Agreement; (iii) the
exercise of any termination right expressly granted to either Owner or Manager
in this Agreement; (iv) the revocation or suspension, or termination of Owner's
Gaming License for a period of more than one (1) year or the non renewal of
Owner's Gaming License.
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2.3 All sums owed by either party to the other shall be paid immediately
upon termination of this Agreement. In the event of any termination of this
Agreement, Owner shall, notwithstanding such termination, be liable to Manager
for the fees earned in conformity with this Agreement prior to such termination
as follows: (i) any unpaid accrued portion of the service fee (including any
unpaid accrued interest thereon), if any, plus (ii) all reimbursable costs to
Manager which were properly incurred prior to termination in connection with the
performance of Manager's obligations in conformity with this Agreement. If the
termination of this Agreement is a consequence of Owner's Default, Owner shall
also be liable to Manager for all reasonable costs (including, but not limited
to, severance pay or settlements and moving expenses of Manager's employees, if
any, and any attorney's fees, expenses, and losses as the result of such
severance) incurred as a direct result of Owner's Default. If the termination of
this Agreement is a consequence of Manager's Default, Manager shall not have the
right to collect any amounts due Manager under this section from the Bank
Accounts. In such event, Owner shall pay Manager within five (5) business days
of the date of termination the amounts owed Manager described in clauses (i) and
(ii) above through the date of termination. Notwithstanding the preceding
sentence, if Owner shall have properly instituted a legal proceeding arising
from Manager's Default, Owner shall have the right to place in escrow that
portion of the amount due Manager under clauses (i) and (ii) which is equal to
the actual damages or expenses sought in such proceeding by Owner as a result of
Manager's Default, pending the release of such funds to the appropriate party
upon (i) the entry of any final non-appealable award of damages or expenses to
Owner, or (ii) any final non-appealable decision by the relevant court or
arbitrator in favor of Manager.
III. SERVICE FEE, EXPENSES
3.1 During the Term of this Agreement, Manager shall be paid the service
fee set forth herein. Failure to pay the service fee in accordance with the time
periods set forth in this Agreement shall constitute a breach of this Agreement.
Starting with the Opening Date, the service fee shall be a fixed amount of
xxxxxxxx xxx xxxxxxx xxxxx xxxxxxx xxx xxxxx xxxxxxxxx per year, payable in
twelve equal installments of xxxxxxx xxxxxx xxx xxxxxxxx xxx xxxx xxxxxxxx. This
amount shall be increased by the Consumer Price Index on an annual (at the end
of each calendar year) basis.
3.2 From the Effective Date of this Agreement until the Opening Date, the
service fee shall be a monthly amount of xxxxxxx xxxxxxx xxx xxxxxxxx xxx
xxxxxxx xxx xxxxxx payable from Owner to Manager.
3.3 The service fee described above shall be paid from Owner to Manager on
the tenth (10th) day of each month, for the preceding month. Owner hereby
authorizes Manager to pay itself the monthly service fee due from the Bank
Accounts. Notwithstanding the foregoing, all Operating Expenses shall be paid
directly from the Bank Accounts.
IV. FACILITY DEVELOPMENT, PRE-OPENING
4.1 From the Effective Date of this Agreement until the Casino is
substantially completed (including the installation of FF&E), Manager, either
directly or through one or more of its Affiliates, shall provide the technical
and pre-opening services described below:
(i) As soon as practicable after the Effective Date of this Agreement,
after Owner has demonstrated and represented, to Manager's reasonable
satisfaction, that the total funding for the hotel and Casino
development is in place, Manager shall present to Owner a proposed
development plan, including Manager's plan and schedule for developing
the Casino as well as a development and pre-opening budget for the
Casino. Manager shall
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consult with Owner in the preparation of the development plan,
provided Owner makes its representatives readily available for such
consultation.
(ii) Manager will prepare specific operational and functional criteria for
the Casino for use by the architects and the designers in the
preparation of the plans and specifications;
(iii)Manager shall advise and consult with the architects in the
development of schematic, preliminary and working plans and
specifications and the designers in the selection and specifications
of FF&E;
(iv) Manager shall review and make recommendations to architects and the
designers in the selection and layout of the FF&E in accordance with
the FF&E specifications and the plans and specifications.
(v) Manager shall implement the marketing portion of the development plan,
including, but not limited to, direct sales, media and direct mail
advertising, promotion, publicity and public relations designed to
attract customers to the Casino from and after the opening date.
(vi) Manager shall, and shall have the sole authority to, recruit, hire,
provide orientation to, train, supervise, promote and determine the
compensation (which must be within normal and reasonable industry
standards) of and discharge all executive and general staff of the
Casino on behalf of Owner, including all Casino personnel to be
utilized during the period from the Effective Date hereto until the
opening date and beyond in accordance with the approved development
plan.
4.2 Owner shall engage and retain, at Owner's sole cost and expense, such
architects, engineers, contractors, designers and other specialists as Manager
and Owner deem necessary to prepare all plans, construction drawings, surveys,
materials, specifications, architectural drawings, elevations, engineering plans
and drawings, approved plans and all other plans, studies or reports required
for the construction of the Casino and for the purchase and installation of the
FF&E.
4.3 The FF&E shall (i) bear the name or identifying characteristic or logo
of the Casino, where appropriate, (ii) be of a quality to enable the Casino to
be, and remain, competitive in its marketplace, and (iii) comply with all
applicable laws, rules and regulations.
4.4 The Casino shall be opened to the public on a date established by Owner
and Manager ("Estimated Opening Date") upon satisfaction of the following: (i)
the architects or contractors have issued to Owner a certificate of substantial
completion confirming that the Casino has been substantially completed in
accordance with the plans and specifications, (ii) the designers have issued to
Owner a certificate of substantial completion confirming that the FF&E have been
substantially installed therein in accordance with the FF&E specifications and
the plans and specifications, (iii) all operating permits (including, without
limitation, a certificate of occupancy or local equivalent, gaming/casino,
liquor and restaurant licenses and all permits, certificates and other licenses
required by any authority) have been obtained, (iv) the initial cash needs and
the working capital for the Casino as determined by Manager and the Casino
Bankroll have been furnished by Owner, (v) Manager is satisfied that all
operational systems have been adequately tested on a "dry-run" basis to the
satisfaction of Manager (and any appropriate governmental authorities if
required), and (vi) all other governmental requirements necessary to open,
occupy and operate the Casino have been satisfied. Manager shall use all
reasonable efforts in the performance of its duties under this Agreement to
assist Owner in achieving the satisfaction of all of the foregoing requirements
by the Estimated Opening Date.
4.5 All costs and expenses properly incurred in connection with the
technical and pre-opening services of Manager ("Pre-Opening Expenses") shall be
paid from the Bank Accounts. Owner shall deposit, in advance, such sums in
accordance with the schedule as shall be established by the parties in the
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development plan and Owner shall maintain sufficient funds therein to pay all
Pre-Opening Expenses in accordance with monthly schedules to be prepared by
Manager and submitted to Owner.
V. CASINO OPERATIONS
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5.1 On or before November 15 of each year, Manager shall submit to Owner an
annual operating plan for the operation of the Casino for the forthcoming year
(each such annual operating plan is referred to herein as an "Annual Operating
Plan"), which shall include an annual marketing plan, annual operating budget by
month (the "Annual Operating Budget"), annual estimate of key operating
statistics, annual projection of sources of cash, and a projection of capital
expenditures. The Annual Operating Plan shall include sufficient amounts for
maintenance and repairs to keep the Casino in good operating condition. Manager
will consult with Owner in preparing the Annual Operating Plan, provided that
Owner makes its representative readily available for such consultations. If
Owner and Manager cannot agree on certain portions of the proposed Annual
Operating Plan or an Annual Operating Budget contained therein, the undisputed
portions of the proposed Annual Operating Plan or Annual Operating Budget shall
be deemed to be adopted and approved. With respect to objectionable items in any
proposed Annual Operating Budget, the corresponding item contained in the Annual
Operating Budget for the preceding year shall be substituted in lieu of the
disputed portions of the proposed Annual Operating Budget, excluding, however,
line items in the previous Annual Operating Budget for extraordinary expenses or
revenues. In any instance where a portion of an Annual Operating Budget from a
preceding year is deemed to be applicable to the Annual Operating Budget in
effect until a new Annual Operating Budget is fully approved, corresponding
items contained in the Annual Operating Budget for the preceding year shall be
automatically adjusted by a percentage equal to the percentage change in the
Consumer Price Index during the preceding year. Tollgate Venture, LLC shall have
the right to provide input in the discussions between Owner and Manager about
the Annual Operating Plan, and Owner shall consider such input in its
discussions with Manager.
5.2 Except as provided elsewhere in this Agreement, Manager shall not,
without Owner's prior written consent, incur any expenses or make any
disbursements that are either not provided for in an Annual Operating Budget or
are in excess of fifty percent (50%) of the amount approved for a particular
item in such Annual Operating Budget unless otherwise permitted; provided,
however, that if a savings of up to $250,000 (two hundred fifty thousand
Dollars) is obtained for a line item, such amount may be reallocated so as to
allow an excess disbursement in an amount up to the amount saved with respect to
another line item. Any request by Manager to make any expenditure or incur any
obligation in excess of fifty percent (50%) of an amount set forth in the Annual
Operating Budget contained in the applicable Annual Operating Plan or which
falls into any category of expenditures which is required by any law to have the
prior approval of Owner, shall be submitted to Owner in writing with an
explanation of such expenditure. Owner shall respond to any request within ten
(10) days after the receipt thereof. If Owner fails to respond within such ten
(10) day period, the proposed expenditure shall be deemed approved.
5.3 Manager may make, enter into and perform, in the name of, for the
account of, on behalf of, and at the expense of Owner, any contracts and
agreements provided for under this Agreement and each Annual Operating Plan and
Annual Operating Budget, so long as Manager has complied with all the
requirements of this Agreement with respect to such contracts and agreements.
All costs and expenses reasonably incurred by Manager or an Affiliate of Manager
in accordance with this Agreement, the Annual Operating Plan and the Annual
Operating Budget shall be for and on behalf of Owner and for Owner's account.
All debts and liabilities properly incurred by Manager under this Agreement to
third parties on behalf of either Owner or the Casino are and shall remain the
sole obligations of Owner.
5.4 During the Term of this Agreement, Manager shall maintain full and
adequate books of account and records ("Books and Records") reflecting the
results of the operation of the Casino on an
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accrual basis, all in accordance with generally accepted accounting principles
consistently applied in all material respects. The Books and Records shall be
kept separate and distinct from all other operations and businesses of Manager
or Affiliates of Manager. All such Books and Records shall at all times be the
property of Owner and shall not be removed from the approved location by Manager
without Owner's written approval except as required by general laws. Upon any
termination of this Agreement, all Books and Records shall immediately be turned
over to Owner so as to ensure the orderly continuance of the operation of the
Casino, but (i) Manager may make and retain copies of all or any portion of the
Books and Records needed for its own record keeping and (ii) such Books and
Records shall be available to Manager for a period of five years after
termination of this Agreement at all reasonable times for inspection, audit,
examination and transcription of particulars relating to the period in which
Manager managed the Casino.
5.5 All Annual Operating Plans and Budgets are intended only to be
reasonable estimates based on Manager's best business judgment and Manager shall
not be liable or responsible in any way, shape or form if any of the budgeted
figures are not attained or there is any variance between the actual revenues
and expenditures and the amounts set forth in any Annual Operating Plans and
Budgets. Owner acknowledges that Manager has not made any guarantees, warranty
or representation of any nature concerning or related to the amounts of Gaming
Revenue to be generated and Operating Expenses to be incurred from the operation
of the Casino during the term of this Agreement.
5.6 Manager shall have the discretion and authority to determine operating
policies and procedures, standards of operation, staffing levels and
organization, win payment arrangements, standards of service and maintenance,
pricing, and other policies affecting the Casino, or the operation thereof, to
implement all such policies and procedures, and to perform any act on behalf of
Owner which Manager deems necessary or desirable in its good faith business
judgment for the operation and maintenance of the Casino on behalf, for the
account and at the expense of Owner.
5.7 Owner shall establish one or more bank accounts that are necessary for
the operation of the Casino at various banking institutions chosen by Owner and
Manager (such accounts are hereinafter collectively referred to as the "Bank
Accounts"). The accounts shall be in the name of Owner, but, except as provided
in the following sentence, Manager's designees shall be the only persons
authorized to draw upon the Bank Accounts. If Manager has committed an Event of
Default which continues during the term of any applicable cure periods, or if
Manager has acted in bad faith with respect to Owner's funds in the Bank
Accounts, then Owner shall have the right to assume control of the Bank Accounts
upon ten (10) business days' prior written notice to Manager, whereupon the
signatures of two (2) members of Owner shall be required to draw upon the Bank
Accounts. The Bank Accounts shall be interest bearing accounts if such accounts
are reasonably available and all interest thereon shall be credited to the Bank
Accounts. All gross revenues received by Manager from the operations of the
Casino shall be deposited in the Bank Accounts and Manager shall pay out of the
Bank Accounts, to the extent of the funds therein, from time to time, all
Operating Expenses and other amounts required by Manager to perform its
obligations under this Agreement. Owner shall bear the risk of the insolvency of
any financial institution holding such Bank Accounts.
5.8 Without limiting the generality of this section, in the event that a
condition exists in, on, or about the Casino of a nature reasonably believed by
Manager to be an emergency, including structural repairs, which Manager believes
requires immediate repair to preserve and protect the Casino and assure its
continued operation or to protect the safety and welfare of the Casino's
customers, guests or employees, Manager, on behalf of and at the expense of
Owner, shall take all reasonable steps and make all reasonable expenditures
necessary to repair and correct any such condition, whether or not provisions
have been made in the applicable budgets for any such emergency expenditures.
Expenditures made by Manager in connection with an emergency shall be paid from
the Bank Accounts. Owner shall replenish funds paid
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from the Bank Accounts with any insurance proceeds, if any, received by Owner
with respect to such emergency condition or situation, and Owner shall replace
any difference between the insurance proceeds, if any, and the amount used for
such emergency from the Bank Accounts. Manager shall promptly notify Owner of
any emergency expenditures made pursuant to this section.
VI. EVENTS OF DEFAULT
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6.1 The occurrence of any one or more of the events described in this
section which is not cured within the time permitted shall constitute a default
under this Agreement (hereinafter referred to as a "Default" or an "Event of
Default") as to the party failing in the performance or effecting the breaching
act.
a) Manager's Defaults. Manager shall have committed a "Manager's Default"
if Manager shall:
(i) file a voluntary petition in bankruptcy or insolvency, or a petition
for relief or reorganization under any bankruptcy or insolvency law;
(ii) consent to an involuntary petition in bankruptcy or fail to vacate any
order approving an involuntary petition within sixty (60) days from
the date of entry thereof;
(iii)assign for the benefit of its creditors all or any substantial part
of its assets, or consent to the appointment of a receiver,
liquidator, custodian or trustee in bankruptcy for Manager of all or
any substantial part of its assets;
(iv) fail to materially perform or materially comply with any of the
covenants, agreed terms or conditions contained in this Agreement
applicable to Manager (other than monetary payments) and such failure
shall continue for a period of forty-five (45) days after written
notice thereof from Owner to Manager specifying in detail the nature
of such failure, or, in the case such failure is of a nature that it
cannot, with due diligence and good faith, be cured within forty-five
(45) days, if Manager fails to proceed promptly and with all due
diligence and in good faith to cure the same and thereafter to
prosecute the curing of such failure to completion with all due
diligence within ninety (90) days thereafter.
If the only result of the failure by Manager to act is a monetary loss to Owner
which is not otherwise capable of being cured by Manager, then Manager shall not
be in Default if Manager reimburses Owner for such losses within ninety (90)
business days of incurring such loss or otherwise protects Owner against such
loss in a manner reasonably acceptable to Owner.
b) Owner's Default. Owner shall have committed an "Owner's Default" if
Owner shall:
(i) file a voluntary petition in bankruptcy or insolvency, or a petition
for relief or reorganization under any bankruptcy or insolvency law;
(ii) consent to an involuntary petition in bankruptcy or fail to vacate any
order approving an involuntary petition within sixty (60) days from
the date of entry thereof;
(iii)assign for the benefit of its creditors all or any substantial part
of its assets, or the consent to the appointment of a receiver,
liquidator, custodian or trustee in bankruptcy for all or any
substantial part of its assets;
(iv) fail to make any monetary payment required under this Agreement,
including, but not limited to, the management fee or Owner's Advances,
on or before the due date recited herein and said failure continues
for five (5) business days after written notice from Manager
specifying such failure; or
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(v) fail to perform or materially comply with any of the other covenants,
agreements, terms or conditions contained in this Agreement applicable
to Owner (other than monetary payments - see above) and such failure
shall continue for a period of forty-five (45) days after written
notice thereof from Manager to Owner specifying in detail the nature
of such failure, or, in the case such failure is of a nature that it
cannot, with due diligence and good faith, cure within forty-five (45)
days, if Owner fails to proceed promptly and with all due diligence
and in good faith to cure the same and thereafter to prosecute the
curing of such failure to completion with all due diligence within
ninety (90) days thereafter.
6.2 Upon the occurrence of a Manager's Default, Owner shall be entitled to
(i) terminate this Agreement by Owner's written notice of termination to Manager
and such termination shall be effective forty-five (45) days after delivery of
such notice; or (ii) obtain specific performance of Manager's obligations
hereunder and injunctive relief. Upon the occurrence of an Owner's Default,
Manager shall be entitled to (a) terminate this Agreement by Manager's written
notice of termination to Owner, and such termination shall be effective
forty-five (45) days after delivery of such notice or such time as a new manager
is appointed, whichever is earlier; or (b) obtain specific performance of
Owner's obligations hereunder and injunctive relief. In the event of a
termination of this Agreement pursuant to clause (a) of this section, Manager
shall be entitled to accelerated payment of its projected Management Fee for the
sixty (60) month period following the termination date of this Agreement, such
projection to be based on the estimated revenues for the Casino in the Casino's
most recent Annual Operating Budget. The parties hereby agree that the amount
payable as liquidated damages described above is a reasonable estimate of the
amount of damages for termination of this Agreement arising out of such Owner
Default and the termination of this Agreement and upon payment thereof Manager
shall have no further rights, claims or entitlement to damages as a consequence
of such termination.
6.3 No delay or omission as to the exercise of any right or power accruing
upon any Event of Default shall impair the non-defaulting party's exercise of
any right or power or shall be construed to be a waiver of any Event of Default
shall impair the non-defaulting party's exercise of any right or power or shall
be construed to be a waiver of any Event of Default or acquiescence therein.
7. CERTAIN RIGHTS AND RESPONSIBILITIES OF OWNER
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7.1 Owner shall advance to Manager on a timely and prompt basis immediately
available funds with which to conduct the affairs of and maintain the Casino
(hereafter referred to as "Owner's Advances") as set forth in this Agreement and
as otherwise provided hereunder.
7.2 Owner shall timely fund to Manager the initial amounts agreed to by the
parties set forth in the development plan or any revisions thereof approved by
Owner. In the event that Owner or Manager anticipates a delay in the opening of
the Casino beyond the Estimated Opening Date, each shall be obligated to
immediately notify the other in writing and Owner shall, at the request of
Manager, at any time and from time to time, deposit with Manager any additional
amounts that are reasonably necessary to pay the additional Pre-Opening Expenses
attributable to the delay, which shall include, without limitation, wages and
other expenses relating to the Casino's personnel already employed.
7.3 Thirty (30) days prior to the Estimated Opening Date, Owner shall fund
to Manager the working capital necessary to commence operating the Casino, as
established by Manager. During the term of this Agreement, within five (5)
business days after receipt of written notice from Manager, Owner shall fund
Owner's Advances adequate to insure that the working capital is sufficient to
support the uninterrupted
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and efficient ongoing operation of the Casino. The written request for any
additional working capital shall be submitted by Manager to Owner on a quarterly
basis.
7.4 Manager shall pay from Gaming Revenues the following items on or before
their applicable due date:
(i) Operating Expenses (including the management fee) and emergency
expenditures, if any; and
(ii) Payments due on any purchase or other financing arrangements relating
to the FF&E, and any other expenditures permitted by any Annual
Operating Plan; and
(iii)Any other taxes, expenses or fees which Owner is obligated to pay out
of Gaming Revenues by contract (as long as such contract has been
brought to the attention of Manager and Owner has requested, in
writing, that Manager shall provide this service for the account of
Owner) or under law.
Manager's responsibility to make any of the foregoing payments is subject to and
conditioned upon Owner making available funds sufficient to make such payments
from Gaming Revenue or otherwise in the order set forth above.
7.5 In addition to the initial cash needs, at least fifteen (15) days prior
to the Estimated Opening Date, Owner shall provide the initial Casino Bankroll
and shall maintain such amount throughout the term of this Agreement. If the
Casino Bankroll required to be provided by Owner is not sufficient or is
depleted as a result of losses, Owner shall fund the Casino Bankroll in an
amount sufficient to carry on the Casino's operations and in a manner which
complies with governmental requirements.
7.6 Owner and Manager shall cooperate fully with each other during the term
of this Agreement to facilitate the performance by Manager of Manager's
obligations and responsibilities set forth in this Agreement and to procure and
maintain all permits. Owner shall provide Manager with all such information
necessary to the performance by Manager of its obligations hereunder as may be
reasonably and specifically requested by Manager from time to time.
VIII. INSURANCE, DAMAGE
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8.1 Owner and Manager shall procure all insurance coverages deemed
necessary and adequate, subject in each case to reasonable deductible amounts as
determined by Owner and Manager. The premiums for all insurance obtained and the
uninsured portion of any loss to which such insurance relates shall be Operating
Expenses.
8.2 In the event of a Minor Casualty, Manager shall repair any damage or
destruction at Owner's sole cost and expense. In the event of a Major Casualty,
Owner shall have the option, to repair and restore the damaged or destroyed
premises.
IX. MISCELLANEOUS
9.1 All notices, demands, consents, requests, approvals, and other
communications required or permitted hereunder shall be in writing and shall be
deemed effective only upon delivery (whether receipt is accepted or refused) at
the addresses set forth below (or at such other addresses as shall be given in
writing by any party to the others in accordance with this section). Notices may
be delivered by hand, registered or certified mail, electronic mail, or courier
service.
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If to Owner: __________________________
__________________________
__________________________
with a copy to: __________________________
__________________________
__________________________
If to Manager: __________________________
__________________________
__________________________
with a copy to: __________________________
__________________________
__________________________
9.2 This Agreement shall be governed by the laws of Delaware, USA. The
forum for any actions between Owner and Manager will be a court of competent
jurisdiction in Delaware, USA.
9.3 This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns but will
not be assignable or delegable by any party without the prior written consent of
the other party; provided, however, that nothing in this Agreement is intended
to limit Manager's ability to assign its rights or delegate its responsibilities
under this Agreement to any direct or indirect Affiliate of Manager.
9.4 If any provision herein shall be held invalid or unenforceable, such
provision shall not affect the validity or enforceability of any other
provisions hereof, all of which other provisions shall, in such case, remain in
full force and effect.
9.5 This Agreement constitutes the entire understanding of the parties with
respect to the subject matter hereof and supersedes all other oral or written
agreements between the parties. This Agreement may not be amended, modified,
altered or waived, in whole or in part, except by a subsequent writing signed by
each of the parties hereto. As long as Tollgate Venture, LLC is a 35%
shareholder in Owner, Tollgate Ventury, LLC's approval is required for any
amendment, modification or termination of this Agreement.
9.6 Except as otherwise set forth elsewhere in this Agreement, both parties
shall maintain confidentiality with respect to material developments in the
course of the development and operation of the Casino. Except as required by any
general law (including, without limitation, federal securities exchange and
stock exchange or NASD requirements) and casino authorities, material
confidential information shall only be made available to such of a party's
employees and consultants as are required to have access to the same in order
for the recipient party to adequately use such information for the purposes for
which it was furnished. Any person to whom such information is disclosed shall
be informed of its confidential nature and shall agree to keep it confidential
as provided herein. Information provided by one party to the other shall be
presumed confidential unless the information is (i) published or in the public
domain other than as a result of any action by the recipient thereof, (ii)
disclosed to the recipient by a third party, or (iii) presented to the recipient
under circumstances which clearly and directly indicate the delivering party
does not intend such information to be confidential.
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9.7 In the event of litigation of any dispute or controversy arising from,
in, under or concerning this Agreement and any amendments hereof, including,
without limiting the generality of the foregoing, any claimed breach hereof, any
suit for accounting, or action for dissolution, the prevailing party in such
action shall be entitled to recover from the other party in such action, such
sum as the court shall fix as reasonable attorneys' fees and expenses incurred
by such prevailing party.
9.8 No consent or waiver, express or implied, by any party to or of any
breach or default by any other party in the performance by the other of its
obligations hereunder shall be deemed or construed to be a consent or waiver to
or of any other breach or default in the performance by the other party of the
same or any other obligations of such party hereunder. Failure on the part of
any party to complain of any act or failure to act of the other party or to
declare the other party in default, irrespective of how long such failure
continues, shall not constitute a waiver by any such party of its rights
hereunder.
9.9 Manager has the right to remove itself from (terminate) this Agreement
in case it reasonably determines that any casino license currently held or
applied for by any company within the Century Casinos group of companies might
be threatened or put in jeopardy because of this Agreement.
9.10 Exhibit A ("Definitions") shall be an integral part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date and year first above written.
FOR CC TOLLGATE LLC:
By: /s/ Xxxxx Xxxxxxxxxx By: /s/ E. Janvier Xxxxxx
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a duly authorized signatory a duly authorized signatory
Print name: Xxxxx Xxxxxxxxxx Print name: E. Janvier Xxxxxx
FOR CENTURY RESORTS INTERNATIONAL LIMITED:
By: /s/ Xxxxx Xxxxxxxxxx
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a duly authorized signatory
Print name: Xxxxx Xxxxxxxxxx
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DEFINITIONS
EXHIBIT A
Affiliate. The term "Affiliate" shall mean a Person that directly or indirectly,
or through one or more intermediaries, controls, is controlled by, or is under
common control with the person in question and any stockholder or partner of any
person referred to in the preceding clause owning more than fifty percent (50%)
or more of such person.
Casino. The term "Casino" means the casino, hotel and entertainment facility,
including improvements and fixtures, at the Tollgate and Xxxxxx Xxxx properties
in Central City, Colorado, consistent with the concepts set forth in the
development plan and in accordance with the plans and specifications.
Casino Bankroll. The term "Casino Bankroll" shall mean an amount of monies
determined by Manager as necessary to provide cash-on-hand monies required to
operate and maintain the Casino's operation, but in no event shall such amount
be less than the amount required by law. In no event shall the Casino Bankroll
include amounts necessary to provide for the payment of Operating Expenses,
Working Capital or initial cash needs. The Casino Bankroll shall include the
funds in the separate accounts in Manager's name plus any funds located on the
casino tables, in the gambling devices, cages, vault, counting rooms, or in any
other location in the Casino where funds may be found.
Default Rate. The term "Default Rate" shall be defined at US Prime Rate plus ten
percent (10%).
Effective Date. The term "Effective Date" shall mean the date when both Owner
and Manager have signed this Agreement and their respective boards of directors
have ratified such signatures.
FF&E. The term "FF&E" shall mean all furniture, furnishings, equipment, and
fixtures, including gaming equipment, computers, housekeeping and maintenance
equipment, necessary or appropriate to operate the Casino in conformity with
this Agreement.
Gaming Revenue. The term "Gross Gaming Revenue" or "Gaming Revenue" shall mean
all gaming receipts less all sums paid out as winnings in connection therewith.
Major Casualty. The term "Major Casualty" shall mean any casualty or accident
which results in a damage in excess of fifty percent (50%) of total replacement
cost of the Casino.
Minor Casualty. The term "Minor Casualty" shall mean any casualty or accident
other than a Major Casualty.
Opening Date. The term "Opening Date" shall mean the first date a revenue-paying
customer is admitted to the Casino. The parties shall hereafter confirm the
Estimated Opening Date and the Opening Date in an Addendum to this Agreement
which shall be attached hereto and made a part hereof.
Operating Expenses. The term "Operating Expenses" shall mean those necessary or
reasonable operating expenses, including, without limitation, costs of operating
supplies, payroll and benefits, marketing, administration, maintenance, energy
and all costs and expenses of licensing Manager's employees, incurred on behalf
of Owner after the Opening Date in connection with conducting and operating the
Casino, computed on an accrual basis, deductible under Generally Accepted
Accounting Principles in determining "Operating Income" (as defined in casino
industry practice) for purpose of preparing a statement of operations for the
Casino; provided, however, Operating Expenses shall not include depreciation or
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amortization with respect to the Casino or the F, F&E, debt service or capital
replacements deposits. Operating Expenses shall include the management fee.
Owner's Gaming License. The term "Owner's Gaming License" shall mean all
licenses, permits, approvals, consents and authorizations from governmental
authorities that are necessary to develop, open, operate and occupy the Casino.
Working Capital. The term "Working Capital" shall mean such amount in the Bank
Accounts as will be sufficient to reasonably assure the timely payment of all
current liabilities of the Casino and the uninterrupted and efficient operation
of the Casino during the term of this Agreement to permit Manager to perform its
responsibilities and obligations hereunder, all as contemplated by the
applicable Annual Operating Plan with reasonable reserves for unanticipated
contingencies and for short term business fluctuations resulting from monthly
variations between the Annual Operating Plan and actual operating expenses.
